UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

NO. 09-15336-AA

HOLLYWOOD MOBILE ESTATES LIMITED, a Michigan limited partnership,Plaintiff-Appellant,

LASALLE BANK MIDWEST NATIONAL ASSOCIATION,Intervenor-Plaintiff Appellant,

- versus -

SEMINOLE TRIBE OF FLORIDA,Defendant,

UNITED STATES DEPARTMENT OF THE INTERIOR,HON. KEN SALAZAR, in his official capacity as Secretary of the Interior,

Defendants-Appellees.__________________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

BRIEF FOR DEFENDANTS-APPELLEES

TONY WESTAssistant Attorney GeneralJEANNE E. DAVIDSONDirectorBRIAN M. SIMKIN

Assistant Director SAMEER YERAWADEKAR

Trial Attorney U.S. Department of JusticeCivil DivisionCommercial Litigation Branch1100 L Street, N.W., Room 10114Washington, D.C. 20530Tel: (202) 305-4696

Hollywood Mobile Estates Ltd. v. Seminole Tribe Case No. 09-15336-AACertificate of Interested Persons

Undersigned counsel for defendants-appellees hereby certifies that the

following is a complete list of persons and entities who have an interest in the

outcome of this case and who were not included in the Certificates of Interested

Persons set forth in plaintiff-appellant’s and intervenor-plaintiff appellants’ briefs:

Acosta, R. Alexander

Davidson, Jeanne E.

Hollifield, Cynthia Elizabeth

Schultz, Anne R.

Simkin, Brian M.

Sloman, Jeffrey H.

United States Department of Justice, Civil Division, Commercial Litigation

Branch, National Courts Section

West, Tony

Yerawadekar, Sameer

_________________________Sameer YerawadekarAttorney for Defendants-Appellees

C-1 of 1

Statement Regarding Oral Argument

Defendants-appellees respectfully suggest that the facts and legal arguments

are adequately presented in he briefs and record before this Court and that the

decisional process would not be significantly aided by oral argument.

i

Table of Contents

Page:

Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c-1

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Course of Proceedings and Disposition in the Court Below . . . . . . . . . . . . .1

II. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

III. Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument and Citations of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

I. Plaintiffs Are Not Entitled To Mandamus Relief Because TheyCannot Show That Interior Has A Clear Duty To Enforce The Lease . . . . . 5

II. The District Court Correctly Analyzed Plaintiffs’ APA Claim Under The Standards For Assessing Mandamus Relief . . . . . . . . . . 11

III. Assuming That The APA Provides A Remedy Against Interior For Not Enforcing The Lease, Plaintiffs’ Claim Under APA Section 706 Is

ii

Table of Contents

(Continued)

Page:

Premature Because They Have Failed To Exhaust Administrative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

IV. Assuming The APA Section 706 Claim Is Ripe, It Does Not Provide Plaintiffs With A Remedy That Would Force Interior To Return Hollywood To The Property . . . . . . . . . . . . . . . . 15

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

Table of Citations

Cases: Page:

*Bennett v. Spear, 520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Brennan v. Roman Catholic Diocese of Syracuse, 322 Fed. Appx. 852 (11 Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15th

*Cash v. Barnhart, 327 F.3d 1252 (11 Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 6th

Chapman v. AI Transp., 229 F.3d 1012 (11 Cir. 2000) . . . . . . . . . . . . . . . . . . . .17th

Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972) . . . . . . . . . . . . . . . . . . . . .13

Adams v. Richarson, 480 F.2d 1159 (D.C. Cir. 1973) . . . . . . . . . . . . . . . . . . . . . .13

Asia Pacific Airlines v. United States, 68 Fed. Cl. 8 (2005) . . . . . . . . . . . . . . . . . 13

Gemini Realty, Inc. v. Gonzalez, 2006 WL 2927562 (M.D. Fla. Oct. 11, 2006) . . . . . . . . . . . . . . . . . . . . . . . 11

Gonzalez v. City of Deerfile Beach, Florida, 549 F.3d 1331 (11 Cir. 2008) . . . . .4th

Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964) . . . . . . . . . . . . . . . . . . . . . .13

*Hernandez-Avalos v. I.N.S., 50 F.3d 842 (10 Cir. 1995) . . . . . . . . . . . . . . . . . .12th

Home Builders Assoc. of Greater Chicago v. U.S. Army Corps of Engineers,335 F.3d 607 (7 Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14th

N.A.A.C.P. v. Sec’y of Housing & Urban Development, 817 F.2d 149 (1 Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13st

Nelson v. United States, 64 F. Supp. 2d 1318 (N.D. Ga. 1999) . . . . . . . . . . . . . . .13

Nulankeyutmonen Nkihtamikon v. Impson, 503 F.3d 18 (1 Cir. 2007) . . . . . . . . .8st

iv

Table of Citations

(continued)

Saguaro Chevrolet, Inc. v. United States, 77 Fed. Cl. 572 (2007) . . . . . . . . . . . . . .9

Sangre De Cristo Dev. Co. v. United States, 932 F.2d 851 (10 Cir. 1991) . . . . . .9th

Shuford v. Fidelity Nat. Property & Cas. Ins. Co., 508 F.3d 1337 (11 Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4th

SSAB North Am. Div. v. U.S. Buerau of Customs and Border Protection,571 F. Supp. 2d 1347 (Ct. Int’l Trade 2008) . . . . . . . . . . . . . . . . . . . . . . . . 12

*The Tule River Indian Reservation v. Sacramento Area Director,Bureau of Indian Affairs, 17 I.B.I.A. 21 (1988) . . . . . . . . . . . . . . . . . . . . . 16

Toffoloni v. LFP Publishing Group, LLC, 572 F.3d 1201 (11 Cir. 2009) . . . . . . .4th

Utah v. U.S. Dep’t of the Interior, 45 F. Supp. 2d 1279 (D. Utah 1999) . . . . . . . . .9

Virelles v. Gonzalez, 2007 WL 2979866 (S.D. Fla. Oct. 11, 2007) . . . . . . . . . . . 11

Statutes & Other Authorities: Page:

*5 U.S.C. § 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

*5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 14

*5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 13, 14

25 U.S.C. § 415(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25 C.F.R. § 162.101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

25 C.F.R. § 162.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

v

Table of Citations

(continued)

*25 C.F.R. § 162.108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

*25 C.F.R. § 162.110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 9

25 C.F.R. § 162.618 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

43 C.F.R. § 4.21(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

28 U.S.C. § 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

vi

Statement of Jurisdiction

The jurisdiction of this Court has been timely invoked under 28 U.S.C.

§ 1291. To the extent that plaintiffs asserted a mandamus claim, the district

court’s jurisdiction was properly invoked under 28 U.S.C. § 1361. As we shall

discuss below, the District Court lacked jurisdiction to entertain plaintiffs’ claim

under section 706 of the Administrative Procedure Act.

vii

Statement of the Issues

1. Whether plaintiff Hollywood Mobile Estates, Ltd. (“Hollywood”) and its

mortgage-holder, plaintiff-intervenor LaSalle Bank Midwest National

Association (“LaSalle”) have met their burden under the standards for

mandamus relief to demonstrate that defendants, the United States

Department of the Interior and Secretary of the Interior Ken Salazar

(collectively, “Interior”), have a clear duty to remove the Seminole Tribe of

Florida (the “Tribe”) from Hollywood’s leasehold property.

2. Assuming that the Administrative Procedure Act (“APA”) could provide a

remedy forcing Interior to remove the Tribe from Hollywood’s leasehold

property, whether plaintiffs’ APA claim is premature for failure to exhaust

administrative remedies.

3. Assuming plaintiffs’ APA claim is not premature, whether the APA could

provide plaintiffs with a remedy forcing Interior to remove the Tribe from

Hollywood’s leasehold property.

Statement of the Case

I. Course of Proceedings and Disposition in the Court Below

Plaintiff Hollywood initially brought this action in the district court against

the Tribe and Interior after the Tribe threatened to remove Hollywood from the

land it had leased from the Tribe for its mobile home park on the Tribe’s

reservation. The Tribe believed that Hollywood had breached its lease with the

Tribe. Hollywood initially sought an injunction barring the Tribe from removing

Hollywood from the property. ER Dkt. 1, at 5. The district court denied1

plaintiffs’ request for injunctive relief, the Tribe was dismissed from the action

because of its tribal immunity, and the Tribe removed Hollywood from the

property. Hollywood’s mortgage-holder, LaSalle, subsequently intervened as a

plaintiff.

Plaintiffs then proceeded against Interior, twice requesting permission to

amend the complaint to include Interior as a defendant and to state claims against

Interior that would require that Interior enforce the lease against the Tribe. ER

Dkt. 63, at 1, 3. The district court denied plaintiffs’ motions to amend the

complaint, and dismissed plaintiffs’ claims. See generally ER Dkt. 63. The

district court subsequently denied Hollywood’s motion for rehearing and to amend

judgment. See generally ER Dkt. 69. Plaintiffs then appealed, challenging the

district court’s denial of their motions to amend the complaint, the dismissal of

their claims, and the denial of Hollywood’s motion for reconsideration and to

amend judgment.

“ER Dkt. __, at __” refers to the docket number of a document in the1

Record Excerpts that Hollywood filed along with its initial brief, and the pagenumbers within that document.

2

II. Statement of the Facts

These undisputed facts are in the complaint and the district court’s opinions.

Hollywood assumed a lease to tribal property with the Tribe, and used the

property for a mobile home park. ER Dkt. 1, at 2. When the lease was initially

granted to Hollywood’s predecessor, Interior had approved it. ER Dkt. 63, at 8.

The Tribe did not waive its sovereign immunity in the lease.

The Tribe, determining that Hollywood had breached the lease, threatened

to remove Hollywood from the property, and, after Hollywood brought suit for a

preliminary injunction in the district court, ultimately did so. ER Dkt. 1, at 3-4.

The Tribe then requested that Interior cancel the lease. ER Dkt. 63, at 3.

Interior’s Regional Director, however, issued a decision denying cancellation of

the lease because he found that Hollywood had not breached the lease, and

because, even if there were a breach, the Tribe removed Hollywood from the

property without giving Hollywood the time the lease afforded to cure any breach.

Id. The Regional Director did not, however, take any action to enforce the lease

against the Tribe, nor did his opinion address whether Interior could do so. ER

Dkt. 69, at 2. The Tribe appealed the Regional Director’s decision to the Interior

Board of Indian Appeals (“Board”), and Hollywood intervened in the Board

appeal. Id. As of this brief’s filing, the Board appeal remains pending.

3

III. Standards of Review

The district court’s dismissal of plaintiffs’ claims for failure to state a claim

upon which relief could be granted is reviewed de novo. See Toffoloni v. LFP

Publishing Group, LLC, 572 F.3d 1201, 1209 (11 Cir. 2009). Where a denial ofth

a motion to amend a complaint is grounded upon a determination that the amended

complaint would fail to state a claim upon which relief can be granted, de novo

review also applies. See Gonzalez v. City of Deerfield Beach, Florida, 549 F.3d

1331, 1332-33 (11 Cir. 2008). Denial of a motion for reconsideration and to alterth

judgment is reviewed for abuse of discretion. See Shuford v. Fidelity Nat.

Property & Cas. Ins. Co., 508 F.3d 1337, 1341 (11 Cir. 2007).th

Summary of the Argument

Plaintiffs are not entitled to a court order mandating that Interior remove the

Tribe from property on its reservation and reinstate Hollywood to that property.

Such relief would be in the nature of mandamus, and, absent plaintiffs’

identification of a clear duty that the law imposes upon Interior to remove the

Tribe and reinstate Hollywood, mandamus relief cannot be granted. Moreover,

any order that resulted in the Federal Government’s removal of the Tribe would

represent a circumvention of the Tribe’s sovereign immunity, the existence of

which no party has challenged on appeal.

4

Moreover, plaintiffs are not entitled to relief under the APA because, even

assuming that relief would be available under the APA, proceedings before the

Board have not concluded, and if plaintiffs are correct that the Board has the

authority to grant them the relief they request, plaintiffs have not exhausted

administrative remedies, and their APA claim is premature.

Even assuming that plaintiffs’ APA claim is not premature, plaintiffs are not

entitled to relief under the APA, because a district court could only review a

decision to cancel or not cancel a lease. Interior’s administrative decision-making

apparatus has not made, and will at no time make, a decision to reinstate or not

reinstate Hollywood to the property, and the district court would never be in

position to review a final agency decision to that effect. Accordingly, plaintiffs

would not be entitled to an order under the APA requiring Interior to reinstate

Hollywood to the property – the relief that plaintiffs seek.

Argument and Citations of Authority

Plaintiffs’ claims for reinstatement to the property fail under the standard

for mandamus relief, and are both premature and unavailable under the APA.

I. Plaintiffs Are Not Entitled To Mandamus Relief Because TheyCannot Show That Interior Has A Clear Duty To Enforce The Lease

Plaintiffs are not entitled to mandamus relief because Interior has no clear

5

duty to enforce the lease against the Tribe. Mandamus relief is available only

when “(1) the plaintiff has a clear right to the relief requested; (2) the defendant

has a clear duty to act; and (3) no other adequate remedy is available.” Cash v.

Barnhart, 327 F.3d 1252, 1259 (11 Cir. 2003) (quotations omitted). The districtth

court dismissed plaintiffs’ request for an order mandating that Interior enforce the

lease by expelling the Tribe from the land and restoring Hollywood to possession

because Interior bore no clear duty to act against the Tribe. ER Dkt. 63, at 9. The

court held that plaintiffs had identified no authority imposing upon Interior a clear

duty to remove the Tribe from the property for Hollywood to retake possession.

Id. The court further held that the question of how Interior may choose to deal

with an alleged breach of the lease by the Tribe was not a ministerial question. Id.

Plaintiffs provide no basis to question that determination upon appeal.

LaSalle argues that several regulations impose upon Interior a clear duty to

enforce the lease against the Tribe, see Appellant LaSalle Bank Midwest National

Association’s Initial Brief, Hollywood Mobile Estates Ltd. v. Seminole Tribe of

Florida, No. 09-15336 (11 Cir.) (Dec. 30, 2009) (“LaSalle Br.”), at 21-23, 26-28,th

but this assertion fails upon examination of those regulations. Section 162.110 of

the Code of Federal Regulations, Title 25, states:

6

Except insofar as these regulations provide for thegranting, approval, or enforcement of leases and permits,the provisions in these regulations that authorize orrequire us to take certain actions will extend to any tribeor tribal organization that is administering specificprograms or providing specific services under a contractor self-governance compact entered into under the IndianSelf-Determination and Education Assistance Act (25U.S.C. § 450f et seq.).

25 C.F.R. § 162.110. LaSalle argues that the plain language of this provision

places a duty upon Interior to enforce leases against tribes, see LaSalle Br. at 26,

but the language merely refers to other regulatory provisions for any guidance

respecting enforcement of leases. LaSalle has not identified any provision

elsewhere in the regulations that, read in conjunction with the language in section

162.110, imposes a duty upon Interior to enforce a lease against the Tribe.

LaSalle asserts that regulations requiring Interior to oust trespassers create a

clear duty to oust the Tribe – the landowner – from possession, but the regulations

do not bear out that assertion. Section 162.108 of Code of Federal Regulations,

Title 25, is entitled “What are BIA’s responsibilities in administering and

enforcing leases?” That section provides:

(a) We will ensure that tenants meet their paymentobligations to Indian landowners, through the collectionof rent on behalf of the landowners and the promptinitiation of appropriate collection and enforcementactions. We will also assist landowners in the

7

enforcement of payment obligations that run directly tothem, and in the exercise of any negotiated remedies thatapply in addition to specific remedies made availableunder these or other regulations.

(b) We will ensure that tenants comply with theoperating requirements of their leases, throughappropriate inspections and enforcement actions asneeded to protect the interests of the Indian landownersand respond to concerns expressed by them. We willtake immediate action to recover possession fromtrespassers operating without a lease, and take otheremergency action as needed to preserve the value of theland.

25 C.F.R. § 162.108. This provision requires Interior to enforce leases against

tenants when the Indian landowner raises concerns, and requires the ouster of

trespassers for the benefit of the Indian landowner. Nothing in this provision even

implies that Interior must oust the Indian landowner itself; quite the contrary – all

the duties Interior owes under the provision are owed to the Indian landowner, at

the expense of any tenant. A regulation that assists only the Indian landowner and

not the lessee is consistent with the overall purpose of the statute under which the

regulations were issued – as the district court noted, that statute, 25 U.S.C.

§ 415(a) was enacted for the purpose of protecting Native American interests. See

ER, Dkt. 63, at 8 (citing Nulankeyutmonen Nkihtamikon v. Impson, 503 F.3d 18,

29 (1 Cir. 2007); Utah v. U.S. Dep’t of the Interior, 45 F. Supp. 2d 1279, 1283st

8

(D. Utah 1999); Saguaro Chevrolet, Inc. v. United States, 77 Fed. Cl. 572, 577-78

(2007)). Interior’s duty as trustee of Indian lands runs in favor of Indian tribes,

not lessees of tribal lands. See Sangre De Cristo Dev. Co. v. United States, 932

F.2d 851, 859 (10 Cir. 1991).th

Reading section 162.108 in conjunction with section 162.101, which defines

trespass as “an unauthorized possession, occupancy, or use of Indian land,” does

not change its meaning, because an Indian landowner’s possession, occupancy, or

use of its own land is not “unauthorized.” Moreover, section 162.104’s provision

respecting fractionated ownership of Indian land is not pertinent here, because the

Tribe has a one-hundred percent ownership interest in the land. Finally, language

from two Federal Register publications stating that Interior “will treat any

possession of Indian land without a lease as a trespass,” and imposing a reasonable

timeframe for trespass enforcement, do not impose upon Interior any affirmative

duty to enforce the lease against the Indian landowner either. LaSalle has

accordingly failed to identify any legal provision imposing a “clear duty” upon

Interior to enforce the lease against the Tribe.

Hollywood has also failed to identify any such provision. Indeed,

Hollywood merely cites to section 162.110 without explaining how its language

imposes a duty upon Interior, and then cites 25 C.F.R. § 162.618 for the

9

proposition that “a lease may not be cancelled or terminated by anyone other than

the Secretary [of the Interior].” Appellant’s Initial Brief, Hollywood Mobile

Estates Ltd. v. Seminole Tribe of Florida, No. 09-15336 (11 Cir.) (Dec. 30, 2009)th

(“Hollywood Br.”), at 19. Hollywood does not explain how Interior’s exclusive

authority to cancel or terminate a lease imposes upon it a duty to enforce a lease

against an Indian landowner. Hollywood accordingly also fails to identify a clear

duty imposed upon Interior to oust the Tribe from its land and reinstate Hollywood

to the property.2

In addition, any order that forces Interior to oust the Tribe from its property

would circumvent the Tribe’s immunity from suit. No party has appealed the

dismissal of the Tribe on grounds of tribal immunity. Accordingly, no party has

appealed the proposition that the district court could not have ordered the Tribe off

the property. If the district court were to have ordered Interior to force the Tribe

off the property, the Tribe’s immunity would have had no effect, because the court

would be ordering Federal officials to oust the Tribe from the property on the basis

that the Tribe breached the lease – the very claim that the Tribe was immune from

Hollywood’s brief incorporates by reference two filings in the district2

court regarding this issue, see Hollywood Br. 18, but neither filing cites to anyadditional Federal law imposing upon Interior any duty to enforce the lease againstthe Tribe. See generally ER Dkt. 47; Dkt. 61.

10

having to respond to. The district court’s decision not to order Interior to remove

the Tribe is thus correct for the additional reason that it preserves tribal immunity.

II. The District Court Correctly Analyzed Plaintiffs’ APA Claim Under The Standards For Assessing Mandamus Relief

The district court properly assessed plaintiffs’ APA claim under the

standards for determining the propriety of mandamus relief. The APA permits

review of agency acts or omissions. It permits review of a claim for mandatory

injunctive relief that “an agency or an officer or an employee thereof acted or

failed to act in an official capacity or under color of legal authority[.]” 5 U.S.C.

§ 702. It also permits review of “[a]gency action made reviewable by statute and

final agency action for which there is no other adequate remedy in a court[.]” 5

U.S.C. § 704. Actions falling into this second category are reversible if they are

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law, as set forth in 5 U.S.C. § 706. Because the remedy that plaintiffs seek is the

enforcement of an alleged duty imposed upon Interior to enforce the lease against

the Tribe, the district court reviewed the complaint under the standard for

mandamus, applicable to claims for mandatory relief under 5 U.S.C. § 702. See

ER Dkt. 63, at 7 (citing Gemini Realty, Inc. v. Gonzalez, 2006 WL 2927562, *2

(M.D. Fla. Oct. 11, 2006); Virelles v. Gonzalez, 2007 WL 2979866, *3-4 (S.D.

11

Fla. Oct. 11, 2007)). The decision to apply the mandamus standard is supported

by case law holding that judicial authority to order a Government official to

perform a mandatory duty is identical under the APA and the writ of mandamus,

so both types of action should be analyzed identically. See, e.g., Hernandez-

Avalos v. I.N.S., 50 F.3d 842, 844-45 & n.7 (10 Cir. 1995) (same standard withth

respect to APA and mandamus standing).

LaSalle argues that the mandamus standard should not be used to evaluate

APA claims, even when they seek to force compliance with a legal duty. LaSalle

Br. 16-19. The only case it cites in support of the notion that some standard other

than the mandamus standard applies in these cases, however, is SSAB North Am.

Div. v. U.S. Bureau of Customs and Border Protection, 571 F. Supp. 2d 1347 (Ct.

Int’l Trade 2008). That case merely held that mandamus did not apply where

section 706 of the APA provided a remedy, and where the plaintiff did not

challenge “the failure to perform a non-discretionary duty[.]” SSAB, 571 F. Supp.

2d at 1350. That case has no bearing here, because plaintiffs in this case are

seeking an injunction to force Interior to perform what they contend is a non-

discretionary duty.

The other cases LaSalle cites do not support the conclusion that some

standard other than the mandamus standard determines whether relief is

12

appropriate under the APA when a plaintiff seeks to force an agency to perform a

legal duty. Some of LaSalle’s cited decisions ordered agencies to act where the

agencies bore clear duties to perform the particular acts they were enjoined to

perform; thus, those cases proceeded under the same standard the district court

applied here. See LaSalle Br. 18 (citing Fitzgerald v. Hampton, 467 F.2d 755, 769

(D.C. Cir. 1972); Adams v. Richardson, 480 F.2d 1159, 1163 (D.C. Cir. 1973)).

LaSalle’s other cited decisions involved courts issuing injunctions after finding

that agencies misused their discretion, pursuant to the standard of review set forth

in 5 U.S.C. § 706; these cases say nothing about the proper standard under which

to assess whether to enjoin an agency for failing to perform a legal duty. See

LaSalle Br. 18-19 (citing Gonzalez v. Freeman, 334 F.2d 570, 574-75 (D.C. Cir.

1964); N.A.A.C.P. v. Sec’y of Housing & Urban Development, 817 F.2d 149, 160-

61 (1 Cir. 1987); Nelson v. United States, 64 F. Supp. 2d 1318, 1326 (N.D. Ga.st

1999); Asia Pacific Airlines v. United States, 68 Fed. Cl. 8, 25, 28 (2005)).

LaSalle’s cases are accordingly irrelevant, and the district court’s application of

the mandamus standard was correct.

13

III. Assuming That The APA Provides A Remedy Against Interior For Not Enforcing The Lease, Plaintiffs’ Claim Under APA Section 706 Is Premature Because They Have Failed To Exhaust Administrative Remedies

Plaintiffs argue that the district court erred in failing to grant relief because

the court had authority to order Interior to enforce the lease under section 706 of

the APA. That argument fails in the first instance because, even assuming that

relief could eventually become available under section 706, it is not available now,

because plaintiffs have not exhausted their administrative remedies.

To avoid the mandamus standard, plaintiffs argue that the district court

should have analyzed whether Interior properly exercised its discretion by refusing

to enforce the lease against the Tribe, pursuant to 5 U.S.C. § 706. See LaSalle Br.

16, 20-21, 23-24; Hollywood Br. 20-23. But assuming that plaintiffs are correct,

and that relief would be available under section 706 because Interior misused its

discretion by not ousting the Tribe, plaintiffs’ claims must be dismissed as

premature, because the Board has not yet issued a final decision on Interior’s

behalf, and accordingly, no final “agency action” has issued under 5 U.S.C. § 704.

For an agency action to be final and reviewable, it must mark the completion of

the agency’s decision-making process, and the action must either determine rights

or obligations, or legal consequences must flow from it. Bennett v. Spear, 520

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U.S. 154, 177-78 (1997); Home Builders Assoc. of Greater Chicago v. U.S. Army

Corps of Engineers, 335 F.3d 607, 614 (7 Cir. 2003). Only the Board’s decisionth

would represent a final, reviewable “agency action.” See 43 C.F.R. § 4.21(d) (“No

further appeal will lie in the Department from a decision of the Director or an

Appeals Board of the Office of Hearings and Appeals”). If plaintiffs are correct to

contend that the Board has authority to reinstate Hollywood to the property, then

the agency has not yet rendered its final decision, and the district court lacked

jurisdiction over its section 706 claim.

Indeed, Hollywood devotes much of its brief to arguing that its section 706

claim is premature. See Hollywood Br. 14-18. We agree. Hollywood errs,

however, in suggesting that this Court or the district court should nevertheless

hold the action in abeyance. Hollywood itself, however, cites language from an

opinion of this Court indicating that jurisdiction under Article III of the

Constitution may not vest until a case or controversy becomes ripe. See

Hollywood Br. 14-15 (quoting Brennan v. Roman Catholic Diocese of Syracuse,

322 Fed. Appx. 852, 875 (11 Cir. 2009)). Absent jurisdiction, a case must beth

dismissed. Accordingly, even if plaintiffs are correct that section 706 affords them

the relief they seek, this action was properly dismissed, because any claim under

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section 706 is premature.3

IV. Assuming The APA section 706 Claim Is Ripe, It Does Not Provide Plaintiffs With A Remedy That Would Force Interior To Return Hollywood To The Property

Even assuming that plaintiffs’ claim under section 706 is ripe, however, it

must be dismissed because a claim under that section could not provide the relief

that plaintiffs request. A court could only review a decision of the Board, and

because the Board can only determine whether the Regional Director’s decision

not to cancel the lease was correct, the district court could only review that limited

decision. It could not review a decision not to enforce the lease against the Tribe,

because Interior never made such a decision.

The Board has determined the nature and extent of its jurisdiction to be

limited to the review of the decisions that may be appealed to it. In a case

requesting that the Board order that Indian tribal officials be trained respecting the

Indian contracting process, the Board explained:

LaSalle’s suggestion that the district court should have opined on the3

merits of the case and remanded to Interior for further proceedings consistent withits opinion, see LaSalle Br. 23-24, is also barred because plaintiffs’ section 706claim is premature. LaSalle is arguing that the district court should have decidedthe merits of its case prior to the Board having the opportunity to do so – a processthat would stand the review of administrative proceedings on its head. No remandis possible until the agency has reached a final decision, which can then bechallenged in district court.

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The Board . . . is not a court of general jurisdiction anddoes not have general supervisory authority over BIA[the Bureau of Indian Affairs] or mandamus powers. Itis authorized to review only certain decisions renderedby BIA officials under 25 C.F.R. Chapter II. See 43C.F.R. 4.1 and 4.330. It, therefore, lacks authority toorder BIA to undertake the training programs requestedby appellant.

The Tule River Indian Reservation v. Sacramento Area Director, Bureau of Indian

Affairs, 17 I.B.I.A. 21, 27 (1988). Plaintiffs have identified no provision

authorizing the Board to address the question of whether Interior should oust the

Tribe from the property even though the Regional Director did not address that

issue. Nor have plaintiffs identified any legal provision authorizing the Board to4

order Interior to enforce the lease against the Tribe, even if it agrees that the

Regional Director was correct not to cancel the lease. Accordingly, any challenge

to the Board’s decision under section 706 of the APA could only review either a

cancellation or non-cancellation of the lease – not whether to oust the Tribe from

the property.5

Indeed, the issue was never raised before the Regional Director, because4

plaintiffs only intervened before the Board, and were not involved in proceedingsbefore the Regional Director.

LaSalle cites several passages from Interior’s filings in the district court5

that it characterizes as admissions that Interior possesses discretion to enforce thelease against the Tribe. See LaSalle Br. 6-8. No admission by a party, however,could grant the Board – the authority within Interior relevant to this case – more

17

LaSalle argues that, in the absence of a Board decision, the district court

could have ordered the Board to make a decision. First, LaSalle did not preserve

this argument by raising it in the district court, so it is barred from raising it on

appeal. See Chapman v. AI Transp., 229 F.3d 1012, 1044 (11 Cir. 2000); seeth

also LaSalle Bank Midwest National Association’s Memorandum In Opposition

To Defendant’s Motion To Dismiss, No. 08-CV-61048 (S.D. Fla.) (Nov. 13,

2008), at ER Docket, Entry No. 50, at 4 (requesting as an alternative to a merits

determination only remand “for further proceedings on the issue of possession

pending final determination or cancellation of the lease”). Second, ordering

Interior to make a decision would mean ordering the Board to do so, and, as we

have explained, the Board lacks authority to order enforcement of the lease against

the Tribe. Third, there is no basis to claim that the Board is unreasonably

avoiding its decision-making process, so there is no reason for a court to order the

Board to act. Accordingly, LaSalle’s alternative remedy of ordering Interior to

reach a decision regarding enforcing the lease against the Tribe fails.

authority than it possesses by law. In addition, in none of the passages LaSallecites does Interior claim the authority to force the Tribe off its own land.

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Conclusion

For the foregoing reasons, we respectfully request that the district court’s

decision be affirmed.

Respectfully submitted,

TONY WESTAssistant Attorney General

JEANNE E. DAVIDSONDirector

BRIAN M. SIMKIN Assistant Director

SAMEER YERAWADEKAR

Trial Attorney U.S. Department of JusticeCivil DivisionCommercial Litigation Branch1100 L Street, N.W., Room 10114Washington, D.C. 20530Tel: (202) 305-4696

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Certificate of Compliance

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally based typeface using Corel Word Perfect 9, 14-

point Times New Roman.

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Certificate of Service

I hereby certify that an original and six copies of the foregoing Brief for

Defendants-Appellees were mailed to the Court of Appeals this 3rd day of March,

2010, and that, on that same day, the foregoing brief was electronically uploaded

to the Eleventh Circuit Court of Appeals’ Internet web site at www.ca11.uscourts.

gov (see attached Brief Upload Result Page), and mailed via Federal Express to:

Bruce Rogow, Esq.Cynthia Gunther, Esq.Bruce S. Rogow, P.A., 500 East Broward Boulevard, Suite 1930, Fort Lauderdale, Florida 33394-3088

Michael P. Hamaway, Esq.Mombach, Boyle & Hardin, 500 East Broward Boulevard, Suite 1950Fort Lauderdale, Florida 33394-3015

John M. Mullin, Esq.Tripp Scott, P.A., 110 Southeast Sixth Street, 15th FloorFort Lauderdale, Florida 33301

Joseph Marc Goldstein, Esq. Temple Fett Kearns, Esq.Shutts & Bowen, LLP, 200 East Broward Boulevard, Suite 2100Fort Lauderdale, Florida 33301-1972

Sameer YerawadekarAttorney for Defendants-Appellees

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